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TMI Blog2020 (11) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... fter within thirty days this complaint was filed. Hence, apparently this complaint was not time barred. On the basis of statement recorded under Section 200 and documentary evidence given under Section 202 of Cr.P.C., offence punishable under Section 138 of N.I. Act was, prima facie, made out. But learned trial Court has failed to appreciate facts and law, has presumed service of notice within 20.12.2017 and has dismissed complaint. This order is apparently erroneous on the face of it and is under mis-exercise of jurisdiction of learned trial Court. Accordingly, this revision merits its allowance. Revision allowed. - Criminal Revision No. - 929 of 2020 - - - Dated:- 17-11-2020 - Hon'ble Ram Krishna Gautam, J. For the Revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to consider above provision of General Clauses Act and thereby rejected complaint on the ground of delayed filing. It was an order apparently erroneous on the face of it. Hence, this revision with prayer for setting aside impugned judgment and order dated 7.2.2020 of trial Court of Additional Court No. 1(Negotiable Instrument Act) Gorakhpur, in complaint case No. 473 of 2018, under Section 138 of N.I. Act, Rajanikant Mani Tripathi Vs. Kiran Yadav and and remit the matter to Court below for further hearing in the case. 2. Learned counsel for the revisionist argued that as per Section 138 of N.I. Act- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2566 , has observed that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Indian Penal Code or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones. The notice was issued by way of registered post and its presumption of service under Section 27 of General Clauses Act may be after thirty days but the trial Judge has presumed service within 2 to 3 days on the ground that drawer and drawee of cheque, both were resident of city Gorakhpur. Hence, presumption of service is to be within 2 to 3 days and on the basis of this presumption, the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e computer Section of the Court concerned on 15.2.2018. Thereafter, it was registered on 16.2.2018. Complainant- Rajanikant Mani Tripathi was examined by way of affidavit under Section 200 of Cr.P.C., whereas documentary evidence- notice issued as payment notice dated 18.12.2017, receipt of registered post dated 18.12.2017, concerned cheque dated 23.10.2017, dishonour memo dated 14.11.2017, was annexed with affidavit. The offence punishable under Section 138 of N.I. Act was said to be made out and was requested for punishment. Learned Trial Judge dismissed this complaint under Section 203 of Cr.P.C., that too, on the ground of being time barred. The main contention was about presumption of service of notice, which was said to be after thirt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice. 8. Apex Court in Subodh S. Salaskar Vs. Jayprakash M. Shah another, in Criminal Appeal No. 1190 of 2008 (arising out of SLP (Crl.) No. 541 of 2008) , while reiterating three Judges Bench decision of Apex Court in C.C. Alavi Haji Vs. Palapetty Muhammed and another (2007) 6 SCC 555 , has propounded that presumption of service, under the statute is arises not only when it is send by registered post in terms of Section 27 of General Clauses Act. But such presumption may be raised also under Section 114 of Evidence Act. In paragraph No. 17 of C.C. Alavi Haji's case (supra):- 17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof, i.e., 16.02.2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter, i.e., on or about 2.03.2001. The complaint petition, therefore, should have been filed by 2.04.2001. 10. Meaning thereby, presumption of service of notice within a reasonable time is to be raised. It should be deemed to have been served at best within a period of thirty days from the date of issuance thereof. Meaning thereby, the reasonable period for presumption of service may be up to 30 days from date of its issuance. Hence, in present case, notice issued was said to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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